H4 - Distribution of Non-School Sponsored Literature in the Schools

Addison
Northwest Supervisory Union Policy

SECTION: SCHOOL-COMMUNITY
RELATIONS CODE
H4

TITLE:
DISTRIBUTION OF NON-SCHOOL
SPONSORED LITERATURE IN THE SCHOOLS

It is the policy of
the school boards of the Addison Northwest Supervisory Union to allow limited
distribution of non-school sponsored literature on school grounds or at school
events by community members or district employees acting in their own behalf or
on behalf of a community group. Accordingly, the Superintendent may permit the
distribution of non-school sponsored literature without discrimination as to the
viewpoint of the literature in accordance with this policy.[1] For purposes of this
and related policy, parent-teacher groups are considered to be school-sponsored
organizations.

Non-school sponsored
literature means any printed, written, or
electronic materials prepared by non-school organizations, groups or individuals
for posting or general distribution that are not prepared as a part of the
curricular or approved extracurricular programs of the district. It also
includes materials prepared by school district employees acting in their own
behalf or on behalf of a community group. Non-school sponsored materials
includes such things as fliers, invitations, announcements, pamphlets,
posters, photographs, pictures, films, audio recordings, digital media
recordings, and electronic messages.

Distribution means
handing non-school literature to others on
school property or during school-sponsored events; posting on school
property such as walls, bulletin boards, and district web-sites; placing upon desks, tables, on or in lockers;
making available in principal’s office; or engaging in any other manner of
delivery of non-school sponsored literature to others while on school property
or during school functions.

This policy prohibits
the distribution of literature that:

Is libelous, defamatory, obscene, lewd, vulgar,
or profane;

Violates federal, state or local
laws;

Advocates the use or availability of any
substance or material that may reasonably be believed to constitute a direct and
substantial danger to the health or welfare of students, such as tobacco,
alcohol or illegal drugs;

Incites
violence;

Interferes
with or advocates interference with the rights of any individual or the orderly
operation of the schools and their programs;[2]

Is
primarily of a commercial nature, including but not limited to all material that
primarily seeks to advertise for sale products or services;[3] or

All non-school
sponsored literature intended for distribution on school property or at
school-sponsored events shall be submitted to the superintendent/principal for
prior review as to the following:[5]

to confirm that the literature includes the name of the
person or organization sponsoring the distribution, and that there is no
implication that the literature is endorsed by the school district,
and

Prior review of
literature is not required when the non-school sponsored literature is
distributed by an attendee to other attendees at a meeting intended for adults
held after school hours.[6]

The superintendent
may place reasonable time, place, and manner restrictions on the distribution of
non-school sponsored literature.[7]

Non-school sponsored
literature may not be used during instructional time or school-sponsored
activities unless it is of educational value to the school program, benefits
district students or the school community, and is factually accurate.

Notwithstanding
anything in this policy, the school district may adopt more restrictive rules
for signs or messages on school property that bears the school imprimatur due to
their location. For example, the school district may restrict the content of
messages on advertising displayed on baseball field fences or brick pavers in
walkways if advertising space is sold in those locations to raise money for the
school district. Selling advertising in that way does not create a public forum
in those locations.[8]

[1] A
totally public forum is one where all materials may be distributed; the classic
example is a public park. A limited public forum is one where certain
categories of material may be distributed. SeeCornelius v. NAACP
Legal Defense and Ed. Fund, Inc., 473 U.S. 788 (1985) and Travis v.
Owego-Apalachin School Dist., 927 F.2d 688 (2d Cir. 1991) (good overview of
differences among types of public forums). School districts may create a
limited public forum by allowing outside groups to distribute literature on a
limited basis as long as the criteria for allowing or prohibiting distribution
are reasonable and viewpoint neutral.

In a
limited public forum, once the district allows a community group to distribute
materials for one purpose then it and must allow all other community groups
wishing to distribute materials dealing with the same topic, even if their view
of the topic is different. The basic principle is that restrictions on
distribution of materials may not be based on a group’s viewpoint. Lamb’s
Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993);
Good News Club v. Milford Central Schools, 533 U.S. 98 (2001). In these
cases, the Supreme Court specifically held that religious groups’ use of school
facilities must be permitted when other groups seeking to teach morals have been
permitted to use facilities; the same approach applies to distribution of
materials.

[3] As
indicated here, a district could choose to prohibit all distribution of
literature that promotes the sale of products or services. As with all
viewpoint neutral prohibitions, care must be taken that the prohibition is
evenly enforced without exceptions. If a district wishes to allow distribution
of materials supporting some commercial activity (such as literature related to
the sale of college testing preparation services) but not others, it must make
the distinction based on criteria that are objective and viewpoint
neutral.

[4] A
common question may be whether fundraising by parent-teacher organizations is
permitted. If such organizations are clearly delineated (either in this policy
or elsewhere) as school-sponsored groups, then they are not restricted by this
policy.

[5]
Prior review of literature by a school official is allowed when the policy sets
forth narrow and clear standards for that review. Chiu v. Plano Indep. Sch.
Dist., 339 F.3d 273 (5th Cir. 2003).

[6]
Prior review of literature is allowed by the law primarily for the purpose of
preventing disruption of the school’s educational activities. Those concerns
are not present when literature is distributed after school hours to adults, so
prior review can be viewed as an unconstitutional prior restraint. Chiu v.
Plano Indep. Sch. Dist., 339 F.3d 273 (5th Cir.
2003).

[7]
Examples of a “time” restriction are that literature be distributed before or
after regular school hours. A “place” restriction might be that literature be
posted only on bulletin boards and not on windows, or that it be made available
on a specified table in the principal’s office. A “manner” restriction might
specify whether or not persons distributing the material may stand at the main
entrance to the building, or might limit the number of copies of a pamphlet that
may be distributed. Hedges v. Wauconda Community Unit Sch. Dist. No. 118,
9 F.3d 1295 (7th Cir. 1993). Such restrictions must be applied
without discrimination as to viewpoint of group or individual who wishes to
distribute non-school sponsored literature. Note that the courts have held a
school district’s internal mail distribution system is not a public forum, and
thus school districts are not required to allow the mail system to be used for
distribution of non-school sponsored materials. Perry Educ. Ass’n v. Perry
Local Educ. Ass’n, 460 U.S. 37 (1983).

[8]Kiesinger v. Mexico Academy and Cent. Sch., 427 F. Supp. 2d 182 (N.D.N.Y.
2006) (holding that school district may constitutionally exclude bricks in
walkway containing religious or political messages, but may not restrict
references to God by certain names and not others based on the particular
religious viewpoint of those references); DiLoreto v. Downey Unified Sch.
Dist. Bd. of Educ., 196 F.3d 958 (9th Cir. 1999), cert.
denied 529 U.S. 1067 (2000) (holding that school district may restrict
advertising on baseball fence to messages that contain no political or religious
content).